The ‘Scalia Five’: An Exchange

As expected, we were deluged with letters regarding Steve Cobble’s June 23 web article “Supreme Injustice”–proving that six months after the historic 5-4 decision clearing the way to a Bush Presidency, the issue still inflames people on both sides of the debate.

Portland, Ore.

As a law student, I take a lot of pride in closely reading all the Supreme Court decisions I can get my hands on. Of course, Bush v. Gore was no exception. So, it surprises me when I see the left, generally speaking, continue to speak in terms of “stolen” elections, or worse, a judicial coup d’état. Any fair reading of that opinion, which, by the way, was not written by Justice Scalia but was in fact a per curiam decision, leaves no doubt that seven of the nine Justices felt that the Florida Supreme Court’s ordered recount had severe equal protection flaws; the only thing the Justices disagreed upon was the proposed remedy. And, even if the “let the vote counting proceed after a statewide standard has been adjudicated, and forget about the Florida Legislature’s stated desire to avail itself of the safe-harbor cutoff date” wing of those seven had prevailed, it has become abundantly clear since then that, while it was close, Bush won Florida by any standard of vote-counting. The only hint that it may be otherwise has come from the latest diatribe from the Civil Rights Commission, which seriously embarrassed itself and hurt its future credibility, by releasing a report that squarely admits there is no evidence whatsoever that blacks, or anyone else for that matter, were “disenfranchised” in the election, while implying all along that there is some sort of Jeb Bush-led secret Nazi KKK cabal that, just below the surface, is working its evil plot.

What concerns me here is that the left generally, and The Nation in particular, seems to be degenerating into a kind of university-based fantasyland, a place where ever-more-bitter leftists continue to marginalize and make self-mockeries of themselves, ultimately to the left’s disadvantage in the national debate. Instead of working to argue policy in a way that most Americans would probably be receptive to, The Nation and others seem hellbent on remaining as insignificant a national factor as possible. But then again, that’s always been the problem, hasn’t it?

Seriously, aside from the true believers (you know, the kind of earnest young men and women who think Chomsky is a genius), and the old-timers (Navasky types), this type of rhetoric is so easily defeated in open debate (which is something, incredibly, that occurs everywhere but university campuses!) that it hardly worth your time to print it. All someone would have to do in answer to your arguments is read the darn opinion. Time to move on.

KEVIN A VAILLANCOURT

Studio City, Calif.

The Supreme Court was trying to stop the Florida Supreme Court from overstepping its authority. That the Florida Supreme Court overturned Judge Sauls’s ruling, which was a “finding of fact,” should stand alone to prove that your arguments are pure leftist politics and not based on reality.

KENNETH SALOTTOLO

Buckeye, Ariz.

Much as I would love to, I can’t just pack up and head to Washington, DC, for a vigil against the Supreme Court, as Steve Cobble suggests. But what I can do is light a yellow candle each Tuesday–yellow as a symbol of the chicken-hearted decision that put us in this situation, slowly but steadily to be consumed by the fire of justice.

Even if I’m in a place, such as at work or at school, where I can’t light the candle, I can place it on my desk, unlit but still a reminder of what was done, and what must never be forgotten.

We have tied yellow ribbons to remind us of human hostages; we should have a similar campaign so long as justice is held hostage in 1600 Pennsylvania Avenue.

LINDA ANN WHEELER HILTON

Santa Barbara, Calif.

The Supreme Court, despite all breathless critiques to the contrary, decided correctly on the facts of the law. It found that the Florida Supreme Court had created, ex post facto, new conditions for counting and verifying ballots after the election had taken place. This violated existing law in at least two ways, both of them separate from the equal protection argument.

First, the US Constitution clearly states that the manner of elections is to be decided by the state legislature, not the judiciary. Second, the US Code states that elections must be conducted with the rules in place before the time of the election. What in this perfectly clear language does your writer not understand? It is highly revealing that instead of looking at the specifics of the law, the writer blithely claims political bias and quotes people–but not a single passage of actual law.

JOHN CHILCOTT

Lawrenceville, Georgia

I can’t make it to the Supreme Court, but I can wear a bell for democracy on my label until the next free election. It used to be a Christmas bell, but now I will make it my freedom bell. Thank you for the idea.

SHIRLEY LINDQUIST

Missoula, Montana

I hope that you have found a good therapist for Steve Cobble, or at least a healthy supply of paper bags to treat his hyperventilations. While I concur that the Supreme Court decision in Bush v. Gore reeks of partisanship, not to mention legalistic bovine scat, the decision hardly merits such hysterical rantings as those in Cobble’s screed. To rank that decision with Dred Scott and Plessy v. Ferguson is not only absurd, but also insulting. Dred Scott reinforced the legality of slavery, while Plessy stamped a federal seal of approval on Jim Crow laws. Bush v. Gore merely broke an electoral tie between two candidates who weren’t politically very far apart. It was hardly on the same historical plane as the other two decisions.

I would remind the esteemed scholars ranting against Bush v. Gore of two things. First, Gore’s claims of victory in Florida are at least as murky and legally debatable as Bush’s, since Gore lost the only two objective vote counts (the machine counts), and postelection media vote counts lack any clear consensus for either candidate. Second, the combination of a freakishly close election and a partisan, weakly argued Supreme Court decision means that Bush v. Gore will most likely remain as much an anomaly as the 2000 election itself.

Cobble and his colleagues are heading into the irrational territory of conspiracy theorists. If people on the left continue to waste their rhetorical energy on quixotic causes like Bush v. Gore while ignoring storm clouds such as the loss of a Democratic House seat in Virginia’s 4th District, they deserve the big losses in 2002 and 2004 that will follow.

JOEL COLLIER

Atkins, Iowa

Thank you, Steve Cobble, for the reminder of that sad, frustrating and inflaming fiasco.

“The Supreme Court cheated. Democracy lost. For now.” It’s your last two words that I hold on to. If I were in the area, I’d join you on the 10th.

LAURETTA LANGE

COBBLE REPLIES

Washington, D.C.

§ The right wing continues to try to convince us that the vote in Bush v. Gore was 7-2, rather than 5-4; that is false. There were four dissenters. The Stevens dissent in particular is worth reading.

§ The per curiam decision, if you can force yourself to read it, is a sad joke. It’s no wonder none of the Scalia Five would sign it–no one wanted to have history assign such a bogus piece of legal logic to him or her.

§ Several of the recounts have actually demonstrated that Bush lost, with one big study still to come.

§ Mistakes, design errors and intentional interventions by supposedly public agencies prevented thousands of non-Bush votes from either being cast or counted. African-Americans were disfranchised at a rate ten times that of whites.

§ I do confess–I admire both Chomsky and Navasky.

§ Calling Judge Sander Sauls’s ruling a “finding of fact” is an insult to lawyers, judges, journalists, scientists, historians and dictionaries. Sauls never even looked at the evidence–the undervote ballots themselves.

§ This is not about Gore; this is about democracy. The judicial coup prevented the counting of legal ballots, violating the people’s right to vote.

§ The Supreme Court let America down. We should not forget it.

STEVE COBBLE